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CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S CHILD SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Family Court, determined (1) the adopted child’s attorney had standing to object to the child support rulings, and (2) the child had the right to receive the adoption subsidy until 21. Mother had consented to the child being cared for by a guardian and thereafter mother voluntarily discontinued the adoptive subsidy. Family Court had found the court could not force mother to receive the subsidy. The First Department determined the subsidy is the child’s resource and mother is to receive the subsidy on the child’s behalf:

Although the mother argues that Family Court Act § 439(e) restricts the filing of objections to a “party or parties,” we find that her reading is too narrow. That section does not prohibit children’s attorneys, where appointed, from filing or rebutting objections to a Support Magistrate’s order for three reasons. First, the statute is focused on the time frame for filing and not on the identity of the filers. It appears that the words “party” and “parties” are used in the general sense of persons or entities who have been served with a copy of the support order, rather than the strict sense of petitioner and respondent.

Second, children’s attorneys are expected to participate fully in proceedings in which they are appointed. We base this conclusion on the broad language of section 249 authorizing appointment of attorneys for children in any type of proceeding, the legislative finding that children’s attorneys can be “indispensable to a practical realization of due process of law”… , and the obligation of attorneys for children to zealously advocate for their clients and generally adhere to the ethical requirements applicable to all attorneys … . It would make little sense for Family Court to be permitted to appoint attorneys for children in child support cases to assist it in carrying out the purposes of the Family Court Act and then not permit those attorneys to file or respond to objections. Indeed, published opinions in other cases acknowledge that they have been permitted to do so … . * * *

Family Court erred in determining that a deviation based on the subsidy would be improper because it would “force” the mother to take steps to undo the subsidy’s suspension. Awarding child support in the amount of the subsidy is not unlike awarding support based on a parent’s historic earning potential, which similarly requires the parent to do what the court has determined he or she is capable of doing based on past performance.

Family Court further erred in failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to determine whether the mother’s basic child support obligation is unjust or inappropriate. In particular, Family Court should have considered the first three statutory factors — the financial resources of the child, the physical and emotional health of the child and his special needs and aptitudes, and the standard of living the child would have enjoyed had he continued to reside with his mother — and the 10th factor: “[a]ny other factors the court determines are relevant in each case.” Considering these factors, we find that awarding child support in at least the amount of the subsidy for so long as the mother is eligible to receive it on the child’s behalf is an appropriate deviation from the basic child support obligation … . Matter of Barbara T. v Acquinetta M., 2018 NY Slip Op 05736, First Dept 8-9-18

FAMILY LAW (ATTORNEYS, CHILD SUPPORT, ADOPTIVE SUBSIDY, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ATTORNEYS (FAMILY LAW, CHILD SUPPORT, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/CHILD SUPPORT (FAMILY LAW, ADOPTIVE SUBSIDY,CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ADOPTIVE SUBSIDY (FAMILY LAW, CHILD SUPPORT, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ADOPTIVE SUBSIDY (CHILD SUPPORT, FAMILY LAW, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))

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DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined that a divorce settlement agreement which indicated a specific date (2020) when the husband’s maintenance obligation ends did not extend the husband’s maintenance obligation beyond the wife’s remarriage in 2015. Because the agreement was silent on the meaning of “maintenance” the court turned to Domestic Relations Law 236 which indicates that a maintenance obligation terminates upon remarriage:

A divorce settlement agreement is a contract, subject to standard principles of contract interpretation … . The agreement at issue does not explicitly define the term “maintenance,” and it is silent regarding the effect of the wife’s remarriage upon the husband’s maintenance obligation. Thus, the plain text of the agreement — which the Court of Appeals says is the best source of the parties’ intent … — is not conclusive of the question on appeal.

“Nevertheless, it is basic that, unless a contract provides otherwise, the law in force at the time the agreement is entered into becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law” (Dolman v United States Trust Co. of N.Y., 2 NY2d 110, 116 [1956] …). The Dolman rule is of longstanding vintage, and the “principle embraces alike those [laws in force at the time of a contract’s execution] which affect its validity, construction, discharge, and enforcement” … . By virtue of the Dolman rule, when parties enter into an agreement authorized by or related to a particular statutory scheme, the courts will presume — absent something to the contrary — that the terms of the agreement are to be interpreted consistently with the corresponding statutory scheme … .

The statutory scheme corresponding to the agreement in this case is Domestic Relations Law § 236, which authorizes divorce settlement agreements and directs that such agreements specify the “amount and duration of maintenance,” if any … . The term ” maintenance’ ” is defined within this statutory scheme as “payments provided for in a valid agreement between the parties or awarded by the court . . . , to be paid at fixed intervals for a definite or indefinite period of time” … . Critically, the statutory definition includes the following caveat: any maintenance award “shall terminate upon the death of either party or upon the payee’s valid or invalid marriage” … . Burns v Burns, 2018 NY Slip Op 05411, Fourth Dept 7-25-18

FAMILY LAW (DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT))/CONTRACT LAW (FAMILY LAW, DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT))/MAINTENANCE (FAMILY LAW, DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT))

IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT).

The First Department, in a complex paternity case spanning eight years, over a comprehensive dissent, determined the order precluding the child, G, from establishing estoppel and finding that petitioner had standing to seek custody and visitation was properly granted. The facts cannot be fairly summarized here:

,,, [T]here is no basis to apply the [estoppel] doctrine here, where petitioner has consistently and diligently asserted his paternity; attempted to visit the hospital in time for G.’s birth; attempted to support G. financially; commenced proceedings and consistently appeared in court by telephone or in person, as he was able. By contrast, JAC [mother’s partner who acknowledged paternity] failed to appear in court in person after September 21, 2011, and failed to appear by his counsel or any other means in any proceeding after June 18, 2012. Moreover, any delay in bringing the paternity proceedings to a conclusion is not attributable to petitioner, but to respondent and JAC, who failed to appear in court on numerous occasions, and to the AFC [attorney for the child], who waited three years before challenging the 2012 estoppel order.

Moreover, contrary to our dissenting colleague’s view, this is not a case where a man may be estopped from claiming to be a child’s biological father on the basis of his acquiescence to the establishment of a strong parent-child bond between the child and another man … . Here, petitioner’s efforts to establish his paternity were far from acquiescent. Petitioner sought, and was granted, leave to postpone commencement of his prison sentence for one month in order to allow him to be present at G.’s birth. When he arrived in New York on October 9, 2008 for that purpose, he called respondent’s mother, who told him that his daughter had been born but did not disclose the hospital in which the birth had taken place. He was then contacted by JAC, who made clear to him that petitioner should have nothing to do with G. Undaunted by these incidents, upon entering prison, he attempted to send money orders to respondent which he intended for G.’s support, but the money orders were returned to him. While still in prison, he commenced the instant paternity proceeding, consistently appearing before the court by telephone and, upon his release from prison in July 2011, in person. And, approximately one month after the June 2012 estoppel ruling was issued, petitioner commenced the custody/visitation proceeding, repeatedly appearing in person and ultimately hiring private counsel in that proceeding, as well. Matter of Michael S. v Sultana R., 2018 NY Slip Op 05404, First Dept 7-19-18

FAMILY LAW (IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))/PATERNITY (IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))/ESTOPPEL (FAMILY LAW, PATERNITY, IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))

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CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined Family Court abused its discretion when it dismissed an equitable estoppel hearing in a paternity and custody proceeding when mother failed to appear and the child requested an adjournment:

Despite the fact that the mother had appeared on all prior court dates, and was in the middle of her testimony at the hearing, the Family Court denied the child’s request for an adjournment, and instead directed dismissal of the petition for failure to prosecute. The child, Malachi S., appeals. …

Here, as the child and the mother correctly contend, the request for an adjournment was reasonable and there was no indication of intentional default or willful abandonment. Under these circumstances, the Family Court improvidently exercised its discretion in directing the dismissal of the petition for failure to prosecute rather than granting the child’s request for an adjournment … . Matter of Simmons v Ford, 2018 NY Slip Op 05176, Second Dept 7-11-18

​FAMILY LAW (CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ADJOURNMENT (FAMILY LAW, CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PATERNITY  (CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CUSTODY (FAMILY LAW, CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT).

The Fourth Department reversed the dismissal, by a Referee, of the petition brought seeking joint custody of children born to respondent, with whom petitioner had had a romantic relationship, on the basis of an agreement that petitioner and respondent would raise the children as a family. The court noted that a dismissal pursuant to CPLR 4401 for failure to make out a prima facie case can not take into account credibility determinations:

Petitioner commenced this proceeding seeking joint custody of, and visitation with, the five subject children, all of whom were born to respondent and conceived by the implantation of fertilized eggs. With respect to her standing to commence this proceeding, petitioner alleged that she and respondent had previously been involved in a romantic relationship, and that they entered into an agreement to raise and co-parent the child that was alive when the parties met. Petitioner further alleged that, prior to the conception of the younger four children, the parties also agreed that respondent would conceive additional children and the parties would jointly raise them as a family. The Referee granted a hearing on the issue of petitioner’s standing to seek custody of the children, at which petitioner’s testimony was consistent with the petition. … At the conclusion of petitioner’s case, the Referee granted respondent’s motion pursuant to CPLR 4401 to dismiss the petition. …

… “[I]n determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom . . . The question of credibility is irrelevant, and should not be considered” … .

Here, the Referee made credibility determinations and weighed the probative value of the evidence in making a determination on the motion to dismiss. Consequently, we reverse the order, reinstate the petition and remit the matter to Family Court to determine, after a full hearing, whether petitioner, by clear and convincing evidence, has established with respect to the four younger children that she “has agreed with the biological parent of the child[ren] to conceive and raise [them] as co-parents” … , and whether, despite being a “partner without such an agreement [she] can establish standing” with respect to the older child … . Matter of deMarc v Goodyear, 2018 NY Slip Op 05095, Fourth Dept 7-6-18

FAMILY LAW (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/CUSTODY (FAMILY LAW, PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT)))CIVIL PROCEDURE (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/CPLR 4401  (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/STANDING (FAMILY LAW, CUSTODY, PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))

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FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT).

The Third Department, reversing Family Court in this contempt and modification of custody proceeding, determined Family Court should not have allowed father to represent himself without first making an inquiry to ensure father understood the consequences of going forward without an attorney. Although Family Court informed father that he should obtain counsel because he was misconstruing the law, and father was represented when the hearing resumed, one of the witnesses examined by father pro se was not recalled for examination by father’s attorney:

“A waiver of the right to counsel must be explicit and intentional, and the court must assure that it is made knowingly, intelligently and voluntarily”… . Thus, the hearing court must “perform a searching inquiry to determine whether a party is aware of the dangers and disadvantages of proceeding without counsel, which might include inquiry into the party’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . …

Supreme Court erred by commencing the hearing without first ascertaining that the father was unequivocally waiving his right to counsel and, if so, conducting an inquiry into whether that waiver was knowingly, intelligently and voluntarily made … . Although one of the two witnesses who testified while the father was pro se ultimately was recalled after the father obtained counsel, and was subjected to direct and cross-examination for a second time, the other witness — the caseworker — was not recalled and her testimony supported both of the mother’s petitions. Furthermore, the violation of a party’s statutory right to counsel “requires reversal, without regard to the merits of the unrepresented party’s position” and, therefore, we need not consider whether the mother would have succeeded on her modification petition absent the caseworker’s testimony … . Matter of Hensley v DeMun, 2018 NY Slip Op 04995, Third Dept 7-5-18

​FAMILY LAW (ATTORNEYS, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/ATTORNEYS (FAMILY LAW,  FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/PRO SE (FAMILY LAW, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/WAIVER (RIGHT TO COUNSEL, FAMILY LAW,  FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))

ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department, reversing Family Court, determined that although mother violated the terms of her suspended judgment, her parental rights should not have been terminated without a finding, based upon a hearing, that termination was in the best interests of the child:

A suspended judgment is intended to provide a parent who has permanently neglected his or her child with a brief period within which to become a fit parent that the child can be returned to in safety … . “A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights”… .

Family Court determined, and we agree, that numerous violations of the terms of the suspended judgment were established by a preponderance of the evidence. …

… [V]iolations that could warrant a revocation of the suspended judgment and termination of parental rights do not automatically have that effect… . It is instead the best interests of the child, which is “relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment,” that determines the appropriate disposition … . Family Court did not make a best interests finding and, absent hearing evidence relating to “the child[]’s present circumstances and relationship with [respondent] and the effect upon the[] [child] of the termination of [respondent’s] parental rights and [the child’s] potential adoption,” it is unclear how Family Court could have done so … . Matter of Cecilia P. (Carlenna Q.), 2018 NY Slip Op 04993, Third Dept 7-5-18

​FAMILY LAW (PARENTAL RIGHTS, ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/PARENTAL RIGHTS (ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/SUSPENDED JUDGMENTS (FAMILY LAW, PARENTAL RIGHTS,  ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/NEGLECT (FAMILY LAW, PARENTAL RIGHTS,  ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))

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COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT).

The Second Department determined the court attorney referee was not authorized to determine a contested family offense petition or custody and visitation issues:

A referee derives authority from an order of reference by the court (see CPLR 4311, 4317…). Here, as correctly asserted by the mother, the order of reference did not authorize the Court Attorney Referee to hear and report or to hear and determine a contested family offense petition. The Court Attorney Referee therefore lacked jurisdiction to dismiss the mother’s family offense petition in this instance… . Accordingly, the family offense matter must be remitted to a judge of the Family Court for a new determination.

With respect to the determination of custody, the order of reference recited that, upon the parties’ stipulation, a court attorney referee is authorized to hear and determine the parties’ rights to custody of and visitation with the child, including the determination of motions and temporary orders of custody. Upon our review of the record, however, we find no indication that the parties stipulated to the reference in the manner prescribed by CPLR 2104, and, absent such stipulation, the Court Attorney Referee had the power only to hear and report her findings … . We further find that the mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge … . The order of reference must therefore be deemed an order to hear and report. Thus, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties’ respective rights of custody and visitation … . Matter of Rose v Simon, 2018 NY Slip Op 04736, Second Dept 6-27-18

​FAMILY LAW (COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/CIVIL PROCEDURE (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/CPLR 4311, 4317, 2104 (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/COURT ATTORNEY REFEREE (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/REFEREES  (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))

AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT).

The First Department, in a full-fledged, comprehensive opinion by Justice Gische, determined the issue of whether KG, on equitable estoppel grounds, had standing to seek custody of a child adopted by her former same-sex partner, CH, required remittal because the issue was not considered by Supreme Court. The couple had an agreement to raise an adopted child. The First Department found ample support in the record for Supreme Court’s factual finding that the agreement was terminated when the couple’s relationship dissolved before the child was adopted. The fact that the agreement was deemed terminated did not, however, prohibit the court from considering whether CH was equitably estopped from denying that KG had standing to seek custody:

Although prior to Brooke [28 NY3d 1] the doctrine of equitable estoppel was not available to establish standing on behalf of nonbiological, nonadoptive parents, it has been relied upon by New York courts in resolving many family disputes involving children. For instance, the legal doctrine has been applied to prevent an adult from denying paternity where a child has justifiably relied upon the representations of a man that he is the father and a parent-child relationship has developed … ,It has also been applied to prevent a biological father from asserting paternity when he has acquiesced in the establishment of a strong parent-child bond between the child and another man … . Recently, it was successfully invoked to prevent a sperm donor from asserting paternity to a child born in an intact marriage … . A unifying characteristic of these cases is the protection of ” the status interests of a child in an already recognized and operative parent-child relationship'” … . Equitable estoppel requires careful scrutiny of the child’s relationship with the relevant adult and is ultimately based upon the best interest of the child … . Likewise, in the context of standing under Domestic Relations Law § 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a nonbiological, nonadoptive adult. The focus is and must be on the child … . It is for this reason that the child’s point of view is crucial whenever equitable estoppel is raised. * * *

We recognize that not every loving relationship that a child has with an adult will confer standing under Domestic Relations Law § 70, no matter how close or committed. It requires a relationship that demonstrates the relevant adult’s permanent, unequivocal, committed and responsible parental role in the child’s life. The underpinning of an equitable estoppel inquiry is whether the actual relationship between the child and relevant adult rises to the level of parenthood. Anything less would interfere with the biological or adoptive parent’s right to decide with whom his or her child may associate … . Consent, whether express or implied, is an important consideration that bears upon the issue. It may be that in this case the issue of CH’s consent becomes a predominant consideration in the ultimate determination of whether equitable estoppel can be established. We only hold that the record developed at trial does not permit us to make the full consideration necessary to finally determine the issue of equitable estoppel at this point

Because the record on equitable estoppel is incomplete, we remand this matter for further proceedings consistent with this decision. Matter of K.G. v C.H., 2018 NY Slip Op 04683, First Dept 6-26-18

​FAMILY LAW (AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/CUSTODY (/PAREAN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/STANDING (FAMILY LAW, CUSTODY, PARENT, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/PARENT (CUSTODY, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/SAME-SEX PARTNERS (FAMILY LAW, PARENT, CUSTODY, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/ADOPTION (PARENT, SAME-SEX PARTNERS, CUSTODY, STANDING, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/DOMESTIC RELATIONS LAW (PARENT, SAME-SEX PARTNERS, CUSTODY, STANDING, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))

,

ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, over an extensive dissenting opinion, determined that the administrative law judge’s (ALJ’s) marking a NYC Administration for Children’s Services (ACS) report as “indicated” for maltreatment of petitioner’s (Natasha’s) child had a rational basis. Natasha had used her five-year-old child as a pawn in a shoplifting scheme. Natasha had an unblemished record and was pursuing a degree in early childhood education. The “indicated” designation will probably make it impossible for Natasha to find work in the childhood education field:

… [I]t was rational for the Administrative Law Judge to have concluded that the child was placed in imminent risk of impairment, constituting maltreatment … , and that petitioner’s actions are reasonably related to employment in the childcare field… ). The act in question — specifically, using the child as a pawn in a shoplifting scheme — “was sufficiently egregious so as to create an imminent risk of physical, mental[,] and emotional harm to the child” … . There is imminent potential for physical confrontation during a theft from a department store monitored by security. Moreover, … under the circumstances presented here, “utilizing a child to commit a crime and teaching a child that such behavior is acceptable must have an immediate impact on that child’s emotional and mental well-being,” particularly where, as here, the child is “young [and] just learning to differentiate between right and wrong” … . Likewise, the Administrative Law Judge rationally concluded that petitioner’s actions are reasonably related to employment in the childcare field “[a]s a matter of common sense” … . Matter of Natasha W. v New York State Off. of Children & Family Servs., 2018 NY Slip Op 04379, CtApp 6-14-18

FAMILY LAW (CHILD MALTREATMENT, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATIVE LAW (FAMILY LAW, CHILD MALTREATMENT,  ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATION OF CHILDREN’S SERVICES ( ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/MALTREATMENT (FAMILY LAW, CHILDREN, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))

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